So, as I said, before, a case looking into executive privilege in regards to subpoenas from Congress was in a federal court, and the federal judge, U.S. District Judge John Bates (a Bush-nominated Judge), ruled that Bush’s aides are NOT exempt from Congressional subpoenas.
The full Memorandum Opinion can be read here (it’s 93 pages long, otherwise I’d stick the whole quote in here). Since it’s so long, I’ll give two key quotes that pretty much summarize the opinion:
- “Harriet Miers [and Josh Bolten] is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena.”
- Regarding the lack of case law for White House aides being immune from Congressional subpoena: “That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law.”
And that’s really the problem here. Executive orders have been used since 1789, and that gives the Executive Branch some limited power to influence and shape laws without actually making new laws. The Supreme Court RARELY overturns these, and although Bush didn’t issue an executive order here, the same principle applies. The difference is that Bush has VASTLY overstepped the bounds of the executive branch, and is now completely reshaping things and taking us into unknown territory.
I agree with Bates’s opinion, and have previously said (here and here) that Rove should testify to Congress (although Rove isn’t mentioned in this case, his predicament came after Miers’s and Bolten’s, but he’s essentially in the same place as Bolten and Miers, so this will apply to him as well).
Now, let’s get to the reactions:
- “We disagree with the district court’s decision.” White House press secretary Dana Perino
- “I have not yet talked with anyone at the White House … and don’t expect that this matter will be finally resolved in the very near future.” Robert Luskin, Karl Rove’s attorney
- “It certainly strengthens our hand. This decision should send a clear signal to the Bush administration that it must cooperate fully with Congress and that former administration officials Harriet Miers and Karl Rove must testify before Congress.” House Speaker Nancy Pelosi (D-CA)
- “We look forward to the White House complying withthis ruling and to scheduling future hearings with Ms. Miers and other witnesses who have relied on such claims. We hope that the defendants will accept this decision and expect that we will receive relevant documents and call Ms. Miers to testify in September.” Representative John Conyers (D-MI), Chairman of the House Judiciary Committee
- “I look forward to working with the White House and the Justice Department to coordinate the long overdue appearances.” Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee
- “I’m sure it will be appealed and it will go on into next year, and it will become a moot issue.” House Republican Leader John Boehner (R-OH), in regards to the fact that the subpoena will expire at the end of the 110thCongress in January. Several Democrats have siad that they expect that the subpoenas will be reissued if and when they keep the Congress in this upcoming election.
- “Unfortunately, today’s victory may be short-lived. If the administration appeals the ruling, our congressional prerogatives will once again be put at risk.” Representative Lamar Smith (R-TX), Ranking Republican in the House Judiciary Committee.
I could not agree MORE with Lamar Smith (and the fact that a major Republican is siding with the Democrats and the Judge shows that Bush is in the wrong). Smith, unlike some Republicans is not making this a partisan issue, but wants to keep the power that has been given to Congress in Congress’s hands (and thus, partly in his hands). These cases simply don’t happen – Congress and the White House normally simply compromise. The fact that this was taken to court means that there is now a LEGAL precedent set. But before those who are happy with this precedent start celebrating, we must remember that precedents and rulings can be overturned by higher courts. If a higher Court, and ultimately the Supreme Court rules to overturn this ruling, Congress will be hating themselves for not simply COMPROMISING with Bush. Congress will lose a power that they’ve taken for granted, possibly forever.
I DO hope that the Bush administration doesn’t appeal this, but I think that they will. I hope Congress prevails. The executive branch has overstepped it’s power, and needs to be stopped. Miers, Bolten, and Rove should ALL testify. And the Bush administration needs to remember that if this ruling gets overturned, this precedent will remain in effect when the Republicans control the Congress and are trying to subpoena Democratic aides.
I have faith in the system, and I really don’t see how Bush can win any case here, but weirder things HAVE happened.
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